Domrin

Ten Years Later:Society, “Civil Society,”and the Russian State ALEXANDER N. DOMRIN
Grazhdanskoe obshchestvo (civil society) is becoming the new mantra of the Russian government and the political elite in general. The term is widely used in the contemporaryRussian political lexicon. A reference to the “creation of civil society” or its “furtherdevelopment” is usually present in a typical set of arguments put forth by Russianpolicymakers endorsing certain political initiatives in the country. Work on “developingstructures of civil society in Russia” is regularly discussed during meetings between Presi-dent Vladimir Putin and leaders of parliamentary factions or presidential envoys, as hap-pened, for instance, on 28 June 2001 during Putin’s meeting with envoys Petr Latyshev(Urals federal district) and Leonid Drachevskii (Siberian federal district). Even the for-mation of a coalition of two political parties—the pro-Putin Edinstvo (Unity), and Primakov-Luzhkov’s Otechestvo–Vsia Rossiia (Fatherland-All Russia)—was officially welcomed byPresident Putin because it was expected to become an “important step aimed at strengthen-ing and developing the political system, and creating civil society.”1 The number of registered public organizations in Russia has reached approximately 350,000, including more than 70,000 social and noncommercial organizations, which areactively operational and directly or indirectly involved in charitable work. According todifferent sources, charity organizations unite between 1 million and 2.5 million citizensproviding assistance and free services to some 20-30 million Russians, worth 15 billionrubles a year.2 Reportedly, the number of Russian regions that have cooperation arrange-ments with, for instance, groups working with orphans and the disabled, has risen from 12(out of 89) in 1998 to 40 in 2001.3 1Polit.ru, 28 June and 12 July 2001.
2Interfax, 4 September 2001 (quoting Evgeni Vodopyanov, the vice president of the Union of Charitable Organiza- tions of Russia); Izvestiia, 21 November 2001.
3See “Good Works,” The Economist (24 March 2001): 61–62. For further research in the Russian nongovernmen- tal sector see a number of useful websites: www.ngo.ru (Catalog of Social Resources on Internet); www.trainet.org(Virtual Resource Center for NGOs); www.hrights.ru (Human Rights Institute); www.hro.org (Human Rights Online);infohome.dcn-asu.ru and infohome.alt.ru (InfoHouse-Altai); www.cip.nsk.su (Inter-Regional Public Foundation, Si-berian Civic Initiatives Support Center); and www.hartia.ru (Information and Discussion Portal for Civil Society inRussia).
The Russian Review 62 (January 2003): 2–20Copyright 2003 The Russian Review Society, “Civil Society,” and the Russian State Not by coincidence, it was on 12 June 2001, a symbolic date in Russia’s recent history and an official Russia Day holiday, that President Putin held a meeting with representa-tives from a wide range of public organizations. Attended by twenty-eight nongovernmen-tal organizations (NGOs)—including the Association of Beekeepers, the Allotment Gar-deners’ Federation, the All-Russian Society of Stamp Collectors, as well as those unitinglawyers, invalids, journalists, consumers, ecologists, and even bards—the Kremlin gath-ering proposed the formation of a Civic Chamber attached to the Office of the President.
The Chamber is expected to become an important component of the process of building acivil society and developing the grass-roots activities of ordinary Russians. Concrete prepa-rations for creating such a Chamber are being made by Gleb Pavlovskii, a former dissi-dent, “political prisoner,” and now the head of a high-profile Foundation for EffectivePolicy, and Vladislav Surkov, a senior official of the presidential administration. TheCivic Chamber will be preceded by the Civil Forum, which convened on 21 November2001 in Moscow with participation of four thousand representatives of citizens’ groupsand NGOs.
The rapid intensification of dialogue among the Russian political elite and social scientists on civil society and its evolution is no accident. Many observers view the stun-ning defeat of radical “reformers” in the Russian parliamentary elections of December1999, and Putin’s decisive victory in the presidential campaign of March 2000, as the endof “revolutionary changes” in Russia. In a popular expression, civil society is the pointwhere revolution ends and the routine (byt) of a democratic regime begins.
In a certain way, the use of the term grazhdanskoe obschestvo is following the pattern of the use of another concept more than ten years ago—pravovoe gosudarstvo (Rechtsstaat,or “law-governed state”). Indeed, “civil society” is probably now mentioned as often asglasnost or pravovoe gosudarstvo were used during perestroika in the late 1980s and early1990s. Back in June 1991 a report prepared for the U.S. Congressional Research Serviceobserved that “voluntary or involuntary lack of consensus on the meaning of the rule oflaw, broad interpretation of the term, and attempts to use it in political demagogy as apopulist tool lead to outright abuses of the concept.”4 In the same way perestroika wastransformed in reality and public consciousness into katastroika—while the “architect ofperestroika,” Mikhail Gorbachev, deservedly enjoys the support of no more than the 0.5percent of the Russian electorate which voted for him in the 1996 presidential elections—so too might the indiscriminate use of “civil society” in Russian political doublespeaktoday lead to similar consequences. The more politicians speak about “civil society,” theless meaningful it becomes.5 4The report was later published as Alexander Domrin, “Issues and Options in the Soviet Transition to the Rule of Law,” in Coexistence. A Review of East-West and Development Issues, no. 30 (Dordrecht, 1993).
5This observation applies not only to Russia and other former Soviet republics. In some other areas of the world the use of the “civil society” formula often lacks any legal meaning and serves as an element of a pseudo-legal justificationfor purely political goals; for example, ethnic Albanian terrorists and separatists in Macedonia demand recognition ofthe Albanian language as the second official language of the republic, their pretext being the need to “secure theadequate development of a civil society” and to “secure the full integration of all citizens of Macedonia into the civilsociety” (Vecer, 12 July 2001, quoted in Ulrich Buechsenschuetz, “Macedonia: Speaking a Different Language,”RFE/RL Newsline [26 July 2001]).
Let us consider, for example, two official documents of the State Duma: the “Plan for Draft Legislation on the Matter of ‘Civil Society,” and the “Recommendations of Parlia-mentary Hearings on ‘Russian Federalism and Problems of Development of Civil Soci-ety.’”6 The former was adopted by the State Duma in the beginning of 1995 and containedtitles of thirty-one bills. Besides bills aimed at regulating the establishment and activitiesof public associations and charity organizations, or formulating “General Principles ofOrganization of Local Government in the Russian Federation,” the list also included draftacts that differed markedly in their constitutional significance and scope of legal regula-tion. On the one hand were bills addressing broad political issues such as “On the Electionof the Russian Federation President,” “On Referendums in the Russian Federation,” and“On the Russian Federation Constitutional Assembly.” On the other hand, one finds leg-islation focused on narrow issues, such as “On the Distribution of Erotic Products.” Similarly, parliamentary hearings at the Russian State Duma on “Russian Federalism and Problems of the Development of Civil Society” (15 November 1999) led to an adop-tion of three sets of “recommendations” in various areas of social activities. In the area ofscientific research, the participants in the hearings recommended that Russian scholars,among other things, concentrate on such eternal problems as “humanism and federalism,”and on such vague topics as “fusion of the energy of civil society with the policy of sustain-able development,” “federalism and civil consciousness of Russian society,” and “civilself-governing society—a condition for the creation and development of real federalism inRussia.” In the sphere of information and mass media, participants advised concentratingon “the need for a productive dialogue between political parties, social movements, andstate authorities, and the center and regions aimed at reaching political consensus betweenthem.” They also recommended introducing a special section, “The Individual, CivilSociety, Federalism in Russia,” in a number of Russian scholarly magazines (Zhurnalrossiiskogo prava, Pravo i ekonomika, Svobodnaia mysl',” Sotsiologicheskie issledovaniia,Polis, Federalizm), and starting a new talk show on TV called “Civil Society and Federal-ism in Russia.” Apart from these long-term goals, which, to a large extent, were hypothetical and detached from current Russian reality (for example, goals such as beginning “complexprograms, federal and regional, aimed at developing and strengthening civil society,” andestablishing an “institute for research in problems of civil society”), the third set of propos-als (“in the legal and administrative sphere”) contained a short list of six draft laws which,from the point of view of organizers of the conference and its participants, would helpRussia move closer to “real federalism” and to “strengthen civil society in our country atthe present time.” This set of bills presents some problems. Although it includes a very small number of titles, two of them repeat each other (“On the Responsibility of Officials for Violations ofCivil Rights and Freedoms, Constitutional Foundations, and Principles” and “On theResponsibility of Officials for Violations of the Constitutional Rights of People”). Two 6“Plan zakonodatel'nykh rabot po tematike ‘Grazhdanskoe obshchestvo’” and “Rekomendatsii parlamentskikh slushanii ‘Rossiiskii federalizm i problemy razvitiia grazhdanskogo obshchestva’” are available in the ParliamentaryLibrary under RF/PM2–3/sl/95–84, and RF/PM2–3/sl/99–552, respectively.
Society, “Civil Society,” and the Russian State others, meanwhile, envision regulating very similar aspects of law and could probably becombined (“On Guaranteeing the Consistency of Legal Acts of Subjects of the RussianFederation with Federal Legislation,” and “On the Mechanism of Recognizing Unconsti-tutional the Legal Acts of Subjects of the Russian Federation Contravening Federal Legis-lation”). It is hard to understand from the title of another bill, “On Information Safe-guarding Citizens’ Security,” what area of social relations it intends to regulate. In case ofthe adoption of the last bill, “On the Mechanism of Rendering Decisions of the RussianFederation Constitutional Court,” the act would most probably be eventually recognized asviolating the Russian Constitution. Indeed, if the activities of the Constitutional Court areregulated by a Federal Constitutional Law (“On the Constitutional Court of the RussianFederation” of 24 July 1994), the proposed “mechanism of rendering decisions” of theConstitutional Court could not, in principle, be introduced by a regular parliamentary act,but only by another Constitutional Law. The Russian Constitution contains an exhaustivelist of Federal Constitutional Laws (on referendum, on arbitration courts, on the Commis-sioner for Human Rights, on martial law, on a state of emergency, and so on), but theproposed act is not among them.
Finally, and most important in the context of this article, it is completely unclear what all those bills have to do with civil society, and in what way their adoption, in theopinion of lawmakers, would contribute to development of civil society in Russia or its“strengthening.” The concept of civil society has a longer history in the transitional regimes of Central andEastern Europe than it does in Russia. By the late 1970s the doctrine of civil society wasalready understood as a program of resistance to the Communist government in Poland.
To a large extent, the “velvet revolutions” themselves were “carried out in the name of“civil” society.”7 Unlike in Central and Eastern Europe, where such terms as “civil society,” “citizen’s committees,” “citizen’s assemblies,” “citizen’s initiatives,” and so on, were the “most fre-quently used terms in the public discourse of that time,” revolutionary (in their essence)legal and political reforms were initiated at the end of the 1980s in the USSR not under“civic” slogans, but under slogans of Soviet transition to “democracy” and the “rule oflaw.”8 The term “democratic” was present in the titles of the most radical groups andmovements in the country: from Novodvorskaia’s schizoid Democratic Union to the mas-sive (at that time) Democratic Russia, and from the Social Democratic Platform of theCommunist Party of the Soviet Union to Travkin’s Democratic Party of Russia and Rutskoy’s“Communists for Democracy.” Symbolically, one of the very first political groups that 7Aleksander Smolar, “Civil Society After Communism: From Opposition to Atomization,” Journal of Democracy 7 (January 1996): 24. Compare to the following observations: “With all the fuss and noise not a single new idea hascome out of Eastern Europe in 1989” (French historian Francois Furet); and “a peculiar characteristic of this revolu-tion, namely its total lack of ideas that are either innovative or oriented towards the future” (Jurgen Habermas), bothquoted in Mary H. Kaldor, “The Ideas of 1989: The Origins of the Concept of Global Civil Society,” TransnationalLaw and Contemporary Problems 9 (Fall 1999): 475.
8Smolar, “Civil Society after Communism,” 24.
used the term grazhdanskii in its title was Grazhdanskii soyuz (the Civic Union), the mostpromising and influential democratic organization standing in opposition to the domesticand foreign policies of the Russian government in general, and to the disastrous course ofAnatolii Chubais’s privatization and the experiments of market bolshevists with the Rus-sian economy in particular.9 The refusal of Yeltsin and his radical supporters to hold adialogue with the Civic Union in the second half of 1992 marginalized Russian politicsand channelled governmental economic and social policy toward predominantly confron-tational and eventually violent forms.
With the collapse of communism in Central and Eastern Europe, the internal content of the idea of civil society so drastically changed that some authors even began speakingabout the “fall of the concept of civil society.”10 This observation is probably correct if wemean an exclusively negative, destructive component of the concept—a denial of the stateper se as an apparatus of force, and a mobilization of societal resistance aimed at over-throwing the state. However, in the words of Bronislaw Geremek (a former Polish Soli-darity activist and subsequently the parliamentary leader of the Democratic Union, thelargest of the post-Solidarity parties), civil society today “cannot and should not base itselfon emotions, but on the building of carefully nurtured institutions. . The main task now isconstructing democratic mechanisms of stability.” In the opinion of Larry Diamond (ofthe Hoover Institution), the “single most important and urgent factor in the consolidationof democracy is not civil society but political institutionalization.”11 “Democratic mecha-nisms of stability” and “political institutionalization” are the key words here. And in thisrespect the conclusions of Geremek and Diamond are highly relevant to Russia as well.
At first glance, the term “civil society” is quite extensively represented in contempo- rary Russian legislation. It has been used in more than a hundred legal acts and officialdocuments (adopted in 1991–2001). Such acts include at least ten presidential decrees,12 9It was already 1993 when Peter Stavrakis, at that time associate director of the Kennan Institute, concluded that “Bolshevist monetarism adapted quite comfortably to the historical terrain of Soviet experience, as the Gaidar teamexhibited the same ideological fervor that had motivated its Leninist precursors.” See his State Building in Post-Soviet Russia: The Chicago Boys and the Decline of Administrative Capacity (Washington, 1993), 56. The term“Bolshevist monetarism” was later transformed into a similarly appropriate version—“market Bolshevism.” See, forinstance, Peter Reddaway and Dmitri Glinski, Tragedy of Russia’s Reforms: Market Bolshevism against Democracy(Washington, 2001). See also K Rossii edinoi, sil'noi, demokraticheskoi, protsvetaiushchei: Politicheskaia pro-gramma Grazhdanskogo soiuza (Moscow, 1992).
10See, for instance, Smolar, “Civil Society after Communism,” 24.
11Bronislaw Geremek, “Problems of Postcommunism: Civil Society Then and Now,” Journal of Democracy 3 (April 1992): 12; Larry Diamond, “Rethinking Civil Society: Toward Democratic Consolidation,” ibid. 5 (July1994): 5.
12Decree No. 354, 13 April 1992, “On the Secretary of State of the Russian Federation”; Decree No. 673, of 6 July 1995, “On Drafting the Concept of Legal Reform in the Russian Federation”; Decree No. 424, 27 March 1996, “OnCertain Measures Aimed at Strengthening State Support to Science and Institutions of Higher Education in the Rus-sian Federation”; Decree No. 440, 1 April 1996, “On the Concept of the Transition of the Russian Federation toSustainable Development”; Decree No. 803, 3 June 1996, “On Basic Provisions of Regional Policy in the RussianFederation”; Decree No. 864, 13 June 1996, “On Certain Measures of State Support to the Human Rights Movementin the Russian Federation”; Decree No. 909, 15 June 1996, “On Approval of the Concept of State National Policy ofthe Russian Federation”; Decree No. 1300, 17 December 1997, “On Approval of the National Security Concept of theRussian Federation”; Decree No. 1370, 15 October 1999, “On Approval of Basic Provisions of State Policy in theSphere of Development of Local Self-Government in the Russian Federation”; and Decree No. 24, 10 January 2000,“On the National Security Concept of the Russian Federation.” Society, “Civil Society,” and the Russian State half of which were issued in March-June of 1996 at the height of Yeltsin’s presidentialcampaign, two presidential directives,13 three resolutions of federal legislative bodies (Su-preme Soviet and State Duma),14 two resolutions of the federal Constitutional Court, andone resolution of the Federal Arbitration Court of the Moscow District;15 three federalprograms: on “Continuation of Reforms and Stabilization of Russian Economy” in 1993,on support to book-printing in Russia in 1996–2001, and “Culture of Russia (2001–2005),”16and at least three resolutions of the federal government.17 “Civil society” is also men-tioned in numerous legal acts and official documents adopted in regions of Russia,18 in-cluding at least six resolutions of Moscow government,19 three addresses of regional lead-ers of Russia (Bashkortostan and Tatarstan), and a number of other acts of executive andlegislative bodies.20 Lip service to the necessity of developing or strengthening “civil society” in Russia was paid in all of the president’s “State of the Nation” addresses to the Federal Assembly(1994–2002), as well as in the Concept of Foreign Policy of the Russian Federation and inthe Doctrine of Information Security of the Russian Federation. Yet, apparently, there isonly one federal Law—“On Education” (No. 3266–1 of 22 July 1992)—that uses thisterm. One quarter of all official documents mentioning “civil society” (to be precise,twenty-five) are international agreements, communiqués, or memorandums (including thoseadopted by the UN, UNESCO, the OSCE, the G–8, the Council of Europe and its Parlia-mentary Assembly, the Supreme Council of the Russia-Belarus Union, as well as a jointstatement by Russian president Putin and Yugoslav president Kostunica of 27 October2000 in Moscow). This figure will become even larger if we add documents hardly havingsignificant legal meaning (like an information report of the federal Central Bank of 3October 1995, or four orders, three letters, and one resolution of the federal Ministry ofGeneral and Professional Education and Ministry of Education), plus those adopted bylesser institutions and organizations (like three resolutions of the Federation of Indepen-dent Trade Unions of February–March 1996, or a resolution of the Third Congress of 13No. 360–rp, 14 July 1992, “On Ensuring the Activities of the Research Center of Private Law”; and No. 589–rp, 18 December 1996, “On Support to ‘People’s House’ Public Institutions.” 14Resolution of the RSFSR Supreme Soviet No. 1801–1, 24 October 1991, “On the Concept of the RF Judicial System”; and resolutions of the State Duma No. 450–1 GD, 13 January 1995, “On a Tentative Program of Legisla-tion-Making” [of the State Duma in 1995]; and No. 359–II GD, 17 May 1996, “On Holding Elections of the RFPresident in Constitutionally Defined Terms.” 15Respectively, No. 7–P, 30 April 1997; No. 14–P, 22 November 2000, and No. KG–A40/2488–01, 22 May 2001.
16The federal programs were adopted, respectively, at a session of the federal government on 6 August 1993 (a month and a half before Yeltsin’s coup d’etat in Russia), by federal government Resolution No. 1005, 12 October1995, and by federal government Resolution No. 955, 14 December 2000.
17No. 939, 19 September 1995; No. 327, 23 March 1996; and No. 547, 1 May 1996.
18See also V. N. Yuzhakov, ed., Stanovlenie institutov grazhdanskogo obshchestva (Materials from the interre- gional scientific and practical conference “Formation of Civil Society Institutions in Saratov Oblast [1989–1999],”20–21 January 2000) (Saratov, 2000).
19See, for instance, Resolution No. 392, 4 May 1999, “On the Concept of a Moscow Program of Social Develop- ment,” and Resolution No. 87–PP, 23 January 2001, “On the Complex Program of Development and Support ofSmall Business in Moscow in 2001–2003.” 20See, for instance, decision of the head of administration of Astrakhan Oblast, No. 598–r, 31 May 2001, “On the Organization of a Scientific-Practical Conference ‘A Civil Society for the Children of Russia.’” For more on the 1999address of the president of Bashkortostan see A. Makhmutov, “Sem' kluchevikh problem Poslaniia–99 PrezidentaRespubliki Bashkortostan Gosudarstvennomu Sobraniiu,” Ekonomika i upravlenie, 1999, no. 3:3–7.
Russian Justices of 25 March 1994, “On the Concept of the Russian Federation’s JudicialSystem”). As a result, a comprehensive Dictionary of Russian Legislation: Terms, Con-cepts, Definitions contains about twenty-five thousand legal terms and definitions, butthere is no “civil society” among them.21 Even the most fundamental commentaries to thefederal Constitution contain no mention of “civil society” in their indexes.22 Russian legislation is not alone in having an unsettled relationship with the term “civilsociety.” The concept remains a matter of much dispute predominantly among scholars ofphilosophy and political theory. Civil society itself is a philosophical concept (which isalso used in political science and sociology). Scholars trace the origins of this doctrine tothe works of Plato, Aristotle, Cicero, Bodin, Grotius, Gobbs, Milton, Spinoza, Locke, tothe classics of French and German Enlightenment (Montesqieu, Rousseau, Pufendorf,Leibniz, Thomasius, and Wolf), as well as to the system of civil society developed byHegel. The concept of civil society is much closer to contemporary political studies ratherthan to legal research. A sample search in just one magazine—The Journal of Democracyin the 1990s—indicated about twenty major articles dedicated to “paradoxes,” “renova-tion,” “democratization,” “resurgence,” “awakening,” and other perturbations of civil so-ciety in various parts of the world, including Russia and other post-Communist countries.
On the other hand, publications dedicated to legal aspects of the concept in Russian orforeign academic periodicals and editions are extremely rare.
In legal terms, civil society does not have a strict definition either in Russian or Western law. It is practically unknown in American legislation.23 Naturally, the fact itselfthat the term “civil society” can hardly be found in U.S. legislation does not necessarilymean that civil society does not exist in the United States. It does mean, however, thatcivil society cannot be instituted by special parliamentary acts or executive orders, but iscreated and nurtured through decades of social development.
Various authors offer different and sometimes contradictory definitions of “civil soci- ety” (or, like Bronislaw Geremek and contemporary Russian legal scholar V. M. Lebedev,they refuse to define it or delimit its interrelations with the law-governed state at all).24 21L. F. Apt et al, comps., Slovar'-spravochnik po rossiiskomu zakonodatel'stvu: Terminy, poniatiia, opredeleniia 22See, for instance, B. N. Topornin, et al., eds., Konstitutsiia Rossiiskoi Federatsii: Kommentarii (Moscow, 1994); and V. A. Chetvernin, ed., Konstitutsiia Rossiiskoi Federatsii. Problemnyi kommentarii (Moscow, 1997).
23The term and its definitions are absent in such sources as Merriam-Webster’s Dictionary of Law (1996), Ballentine’s Law Dictionary, with Pronunciations (1969), Mellinkoff’s Dictionary of American Legal Usage (1992), or in BrianA. Garner’s A Dictionary of Modern Legal Usage (1995). Burton’s Legal Thesaurus (1998) contains twenty-sevenassociated concepts of “civil,” but there is no “civil society” among them. A fundamental reference edition, Words andPhrases: Permanent Edition, 1658 to Date (1964–2001), consists of more than one hundred volumes and includes“all judicial constructions and definitions of words and phrases by the state and federal courts from the earliest times,alphabetically arranged and indexed,” except “civil society.” Black’s Law Dictionary (1999) is presumably the onlyknown American law dictionary which contains a legal description of “civil society,” but that does not help eitherbecause that source defines the term as “the political body of a state or nation; the body politic” (p. 1396), whichbasically incorporates the whole spectrum of sociopolitical relations in the country.
24In Geremek’s words, “We don”t need to define [civil society]. We see and feel it” (quoted in Flora Lewis, “Civil Society: Its Limits and Needs,” International Herald Tribune [30 September 1989]). According to V. M. Lebedev, Society, “Civil Society,” and the Russian State For example, M. Steven Fish’s “moderately restrictive” definition of “civil society” hasroom for Gaidar’s DemRossiia, but allegedly excludes “fanatical organizations and groupsthat seek to seize control of the state and rule exclusively.” On the other hand, AlexanderLukin correctly describes Democratic Russia and other radical “‘democratic’ activists” inRussia as viewing democracy “not as a system of compromises among various groups andinterests . but as the unlimited power of “democrats” replacing unlimited power of thecommunists.”25 Thus, Democratic Russia certainly meets Fish’s definition of a “fanaticalorganization” (even though he favorably evaluates DemRossiia’s role and legacy in Rus-sian politics) and—following Fish’s criteria—cannot be considered a “civil society” group(or “civic group”).
Before speaking about the peculiarities of the Russian interpretations of civil society, it is necessary to state that, despite all misunderstandings and periodic use of the term inpolitical demagoguery, the rehabilitation of the concept of civil society in Russian scienceand political life is certainly a very positive accomplishment in itself. Needless to say, formany decades there was no place in Soviet social sciences (including law) for an objective,unbiased study of such complex concepts as “civil society,” “rule of law,” or “separation ofpowers.” The dogmatic view on the nature of the Soviet society as a “society withoutconflicts” (beskonfliktnoe obschestvo) made any serious research of those doctrines irrel-evant. The Philosophical Dictionary (1975) described “civil society” exclusively as aconcept of “pre-Marxist philosophy.” Sergei S. Alexeev, a Sverdlovsk legal scholar and afuture Chairman of the USSR Constitutional Supervision Committee, insisted that law “byits nature cannot be above the state” and that rule of law is a “deceitful, false, scientificallyuntenable (lzhivaia, fal'shivaia, nauchno nesostoiatel'naia) bourgeois theory.” Avgust A.
Mishin interpreted the legal status of President in the United States and other foreigncountries as that of the “constitutional monarch,” “somewhat of an atavism,” a “sign of aphilistine admiration for Crown.” In 1989, Moscow professor Vladimir N. Danilenko stillargued that judicial constitutional review provides “wide opportunities for an assault onrights and freedoms.”26 Despite all the differences in how Russian scholars, politicians, and legislators understand“civil society,” we can nevertheless try to formulate certain common and more or less “specialists in political science refuse to draw a clear-cut distinction between [civil society and law-governed state];they consider it a difficult task. As a lawyer, I find it an irrelevant task as well.” See his “O systeme grazhdanskogoobshchestva Rossii,” in Grazhdanskoe obschestvo i regional'noe razvitie, (materials from a conference on CivilSociety and Regional Development, 22 April 1994), ed. E. I. Cherniak (Tomsk, 1994), 16. Václav Klaus, formerprime minister of the Czech Republic, also confesses that he finds the term civil society “superfluous,” a “hollowphrase,” and claims that he does “not think that a civil society is different from a democratic society.” See “CivilSociety After Communism: Rival Visions. Václav Havel and Václav Klaus, with Commentary by Petr Pithart,” Jour-nal of Democracy 7 (January 1996): 18.
25M. Steven Fish, “Rethinking Civil Society: Russia’s Fourth Transition,” Journal of Democracy 5 (July 1994): 41; Alexander Lukin, “Forcing the Pace of Democratization,” ibid. 10 (April 1999): 39 (emphasis added in bothquotes).
26M. M. Rozental, ed., Filosofskii slovar', 3d ed. (Moscow, 1975), 93; S. S. Alekseev, Sotsial'naia tsennosti prava v sovetskom obshchestve (Moscow, 1971), 193; A. A. Mishin, Tsentral'nie organy vlasti burzhuaznykh gosudarstv(Moscow, 1972), 10; V. N. Danilenko, Deklaratsiia prav i real'nost': K 200-letiiu Deklaratsii prav cheloveka igrazhdanina (Moscow, 1989), 55.
accepted approaches.27 Unlike their Western counterparts who consider civil society an“intermediary phenomenon, standing between the private sphere and the state,” “an au-tonomous, self-regulating domain independent of the State,” thus placing a dividing linebetween civil society and the state, Russian scholars and policymakers tend to interpret the“law-governed state” as a political manifestation (ipostas') of “civil society.”28 Rule of lawis unquestionably a key element in sustaining the development of civil society, but a law-governed state is viewed not as if it is separated from civil society, but as a reality, which isbased on the latter. Russian scholars understand the relationship between the law-gov-erned state and civil society to be one of form and substance, as a balanced, mutuallyrestricted collaboration. Civil society is interpreted not as diminishing the law-governedstate, but rather complementing and completing it.29 Overall, Russian scholars are hesitant to consider civil society as the uncontrolled realm of individuals. Following Hegel, they tend to conclude that civil society does notexist before the state or outside of it. As if arguing with one of the above quoted authors,Oleg Rumiantsev, the secretary of the (parliamentary) Russian Constitutional Commis-sion in 1990–93, wrote: “Civil society is not absolutely autonomous, because it experi-ences certain influence from the state, doesn’t exist before or outside of the latter, butcoexists with its obvious reality which in a way embraces it.”30 The state provides protec-tion to civil society, including protection of citizens’ life and health, and maintenance oflaw and order. In the Russian interpretation, civil society cannot be established at thestate’s expense. The state is responsible for maintaining social justice in the country andapproximately equal levels of material wealth for its citizens. With its protective foreignand defense policy, the state exercises its role as the ultimate guarantor of the existence ofcivil society and the Nation.31 27See, for instance, A. S. Avtonomov, “Pravovoe oformlenie grazhdanskogo obshchestva v Rossii,” Predstavitel'naia vlast': Monitoring, analiz, informatsiia, 1995, no. 1:73–88; E. Iu. Dogadailo, “Grazhdanskoe obshchestvo igosudarstvennaia vlast',” ibid., 1996, no. 2:48–56; V. V. Lapaeva, “Obshchestvennoe mnenie kak institut grazhdanskogoobshchestva,” Advokat, 1997, no. 3:69–81; idem, “Obshchestvennoe mnenie i zakonodatel'stvo,” Sotsiologicheskieissledovaniia, 1997, no. 9:16–27; and Iu. Nisnevich, “Problemy vzaimodeistviia obshchestva i vlasti v Rossii,”Informatsionnie resursy Rossii, 1997, no. 4:6–10.
28Larry Diamond, “Civil Society and Democratic Development: Why the Public Matters,” in Democratization: Does the Public Matter? (Papers from the 1996 Distinguished International Lecture Series), ed. Cheri Long andDouglas Midgett, Issue Editors (Iowa City, 1999), 6 (emphasis added); Adam B. Seligman quoted in Susan Shell,“Conceptions of Civil Society. Review of The Idea of Civil Society, by Adam B. Seligman and of Civil Society andPolitical Theory, by Jean L. Cohen and Andrew Arato,” Journal of Democracy 5 (July 1994): 124 (emphasis added).
According to Diamond’s more detailed definition, civil society is the “realm of autonomous, voluntary associationsthat pursue limited ends in the public sphere, self-generating, (largely) self-supporting, autonomous from the state, andbound by a legal order or [a] set of shared rules” (“Rethinking Civil Society: Toward Democratic Consolidation,” 5).
29See, for instance, Grigorii N. Manov, “Vstuplenie,” in Grazhdanskoe obshchestvo i pravovoe gosudarstvo: Predposylki formirovaniia, ed. G. N. Manov (Moscow, 1991), 5–6; Pravovoe gosudarstvo v Rossii: Zamysel irealnost’ (K desiatiletiiu perestroiki). Kruglyi stol iuristov, 19.04.1995 (Moscow, 1995), 16.
30Oleg Rumiantsev, Osnovy konstitutsionnogo stroia Rossii (Poniatie, soderzhanie, voprosy stanovleniia) (Mos- cow, 1994), 76 (emphasis added). See also idem, “Stanovlenie grazhdanskogo obshchestva v Vostochnoi Evrope,” inSovremennyi sotsializm i problemy perestroiki (Moscow, 1989), 6–31.
31See, for instance, Z. M. Chernilovskii, “Grazhdanskoe obshchestvo: Opyt issledovaniia,” Gosudarstvo i pravo, 1992, no. 6:142–51; and O. V. Martyshin, “Neskol'ko tezisov o perspektivakh grazhdanskogo obshchestva v Rossii,”ibid., 1996, no. 5:3–13.
Society, “Civil Society,” and the Russian State Neither Russian nor Western scholars consider civil society an absolute value in it- self. M. Steven Fish, for instance, speaks in quite positive terms about the absence of a“vigorous civil society” in Russia in post-Soviet days, which was an “advantage” for Gaidar’s“shock therapy” because it reduced the “strong popular resistance” to “economic liberal-ization.”32 Indeed, Russian radical “reformers” (and their foreign advisors) cannot beconsistent, sincere, or logical when demanding the creation (or development) of civil soci-ety in Russia today, because the absence of civil society (or its weakness) in the beginningof the 1990s was one of the most important factors that actually allowed them to exercisethe pillage of the country under the guise of “reforms.” It also deserves mentioning that the Draft Constitution prepared by the (parliamen- tary) Russian Constitutional Commission in 1990–93 contained a special chapter dedi-cated to civil society. The Constitution of the Republic of Crimea of 1992 actually hassuch a chapter, and it was drafted with the support of members and experts of the RussianConstitutional Commission. Naturally, there was no room for a chapter on civil society inthe Yeltsin’s semi-authoritarian, superpresidential, “victor’s Constitution.”33 To be successful, civil society in Russia must develop in tendem with the strengthen- ing of Russian statehood. In Putin’s words (from his address to the June 2001 meetingwith NGOs), “Great Russia is a great society.” Russians are tired of the state-weakeningactivities of radical social groups and organizations that came to existence at the end of the1980s and early 1990s; organizations whose motto can be expressed in the words of anOsip Mandel'shtam poem: “We live but don’t feel the country under our feet” (My zhivempod soboiu ne chuia strany). Richard Rose’s seven-year-old observation that, “if forced tochoose, a majority of East Europeans would prefer weak and ineffective government tostrong government,” is no longer correct with respect to Russia.34 One of the main reasonsbehind the stable (almost guaranteed) electoral strength of the Communist Party of theRussian Federation (KPRF) (and an important factor in the victory of the pro-Putin Unityparty in the 1999 parliamentary elections) is the fact that 42.1 percent of its supportersconsider the KPRF program and activities “state-oriented,”35 whereas only 21.6 and 20percent of voters for Iabloko and the Union of Rightist Forces find it important that theirparties will work for strengthening Russian statehood.36 A recent study undertaken by the Russian Academy of Science (with support of Friedrich Ebert Foundation) demonstrates that the restoration of state power and the “revival ofRussia as a mighty global power” is considered the main “unifying and mobilizing idea”in Russia now: 48.3 percent of respondents share this point of view (in 1995 it was 41.4 32Fish, “Rethinking Civil Society: Russia’s Fourth Transition,” 34.
33Robert Sharlet, “Citizen and State under Gorbachev and Yeltsin,” in Developments in Russian and Post-Soviet Politics, ed. Steven White et al (Durham, NC, 1994), 128. Robert V. Daniels concluded, alarmingly, that Yeltsin“demonstrates how attempts to copy the American system are likely to end up in dictatorship, as they have so often inLatin America” (“Yeltsin’s No Jefferson. More Like Pinochet,” New York Times, 2 October 1993).
34Richard Rose, “Rethinking Civil Society: Postcommunism and the Problem of Trust,” Journal of Democracy 5 35A slightly smaller percentage of supporters of Unity—41 percent—explain their choice by the “state-oriented” 36Otnoshenie naseleniia k federal'nym zakonam i organam gosudarstvennoi vlasti (Moscow, 2000), 11. The analytical report was prepared for the Russian Government and is on file with the author.
percent), compared to 10.2 percent who named an “idea of individual freedom, priority ofinterests of an individual over interests of the state.” Other respondents named “return tosocialist ideals and values” (15.3 percent), “convergence with the West” (14.5 percent),Russia’s “uniqueness as a nation, special historical mission of Russian people” (8.0 per-cent), and so on. It is quite remarkable that the percentage of those who support an “ideaof resistance to the West, self-reliance” (in other words, autarchy) has grown more thanfivefold in the last five years: from 2.3 percent in 1995 to 12.2 percent in 2001—thehighest rate of growth compared to ten other “ideas.”37 Václav Havel’s description of civil society as a “social space that fosters the feeling of solidarity between people and love for one’s community” is very close to the Russiantraditionalist understanding of the concept.38 According to a contemporary scholar fromSiberia, “civil society is a society of citizens having not only a certain level of legal con-sciousness, but a sense of national pride . love of one’s fatherland.”39 A number of publicorganizations may disagree that their views are “destructive,” but that is exactly how theywere characterized by Vladimir Kartashkin, a well-known Russian specialist in interna-tional law from the Institute of State and Law and the head of the presidentialadministration’s Commission for Human Rights, and it is exactly how the overwhelmingmajority of Russians feel as well.40 Although Kartashkin’s statement was immediatelydismissed by such NGOs as the human rights group Memorial, which is known for itsexcessive disparagement of Russian history and the Russian state, the same opinion wasexpressed by Viacheslav Igrunov, a Soviet human rights activist and now a leading figurein the democratic Iabloko party, a federal State Duma deputy, and the director of the Insti-tute of Humanitarian and Political Studies. At a press conference of the Civil Forumorganizing committee, Igrunov appealed to the Russian public organizations to stop “fu-tile exercises in fault-finding” (besplodnoe kritikanstvo) and turn instead to creative workin cooperation with the state.41 Even the U.S. Congress-funded Radio Free Europe/Radio Liberty had to recognize that “there are, of course those groups which reject any kind of cooperation” with Russianauthorities in their activities.42 Such groups certainly have the right to “reject any kind ofcooperation” with the Russian state, and the state has a legitimate right to call their 37“Anatomiia russkoi dushi: Desiatiletie otechestvennykh reform v rasshifrovke sotsiologov,” Izvestiia, 16 April 2002. Another opinion poll had similar results. 35 percent of respondents named “the revival of Russia as a mightyglobal power” as the main unifying and mobilizing idea in Russia, compared to 13 percent who named communismand socialism; 7 percent who named capitalism; 6 percent—democracy; 5 percent—Russia’s “uniqueness as a na-tion”; and 3 percent—religion (Nikolai Popov, “Kakaia vera nas spaset,” Novoe vremia, 14 October 2001).
38“Civil Society After Communism: Rival Visions,” 18.
39B. G. Mogilnitskii, “Grazhdanskoe obshchestvo i istoricheskoe soznanie,” in Grazhdanskoe obshchestvo i regional'noe razvitie, ed. E. I. Cherniak (Tomsk, 1994), 6.
40In Kartashkin’s words, “many human rights activists, particularly in the capital, unfortunately continue their destructive struggle—they have not forgotten their dissident past, although the situation has totally changed” (Interfax,22 June 2001).
41For many years, in Igrunov’s words, the confrontational attitude was the most essential and characteristic element of certain NGOs, but now it is outdated. Confrontation leads to the marginalization of members of such groups and ofthe groups themselves, and eventually marginalizes the ideas which are exploited by such people and organizations(Polit.ru, 11 July 2001).
42See Alexander Verkhovsky, “Operation Civic Forum,” RFE/RL (Un)Civil Societies 30 (1 August 2001).
Society, “Civil Society,” and the Russian State activities “destructive.” But in this particular case it is clear which side enjoys the people’sempathy. When a Yaroslavl' Oblast regional branch of Memorial failed to renew its regis-tration (by September 2000) and a local court subsequently liquidated the branch (in July2001), Yaroslavl' residents reacted favorably and organized no major protests, meetings,or demonstrations in support of Memorial.
Western theoreticians of civil society agree that “civil society encompasses a vast array oforganizations, formal and informal,” and mention economic organizations (productiveand commercial associations and networks) before any other civil society components:cultural, informational and educational organizations, interest groups, developmental or-ganizations, issue-oriented movements, civic groups.43 But the state is not only a powerstructure—it is an active subject of economic activities as well. That is true of any society,including Russia’s. The state has always played a special role in the national economics ofRussia, and the state has traditionally enjoyed special property rights with respect to stateenterprises, land, forests, and the like. About a third of all property assets in Russia stillbelong to the state. According to Argumenty i fakty (quoting officials and experts of thefederal Ministry of Property Relations), “where the state owns from 25 to 50 percent ofshares, things go even worse than at enterprises with 100 percent state participation.”44 Itis no surprise, then, that 79 percent of Russians “strongly support, or more or less sup-port,” strengthened state control over the economy.45 Thus, even from a theoretical pointof view it would be wrong to recognize a regular economic organization or an enterprise asan element of civil society and to deny this right to the state. Moreover, in the judicialsphere the state is accountable like any other subject of civil society, be it an individualcitizen or a collective.
More than likely, the Russian interpretation of civil “society” is closer to “commu- nity” in the traditional Russian understanding of that term, especially because both wordsare synonyms in Russian—obshchestvo. In this respect, Grigorii Iavlinskii’s recent criti-cism in a liberal newspaper that Russia has a “defective” and “unstable” democracy which“is not supported by the majority of Russians,” and that civil society is substituted with“the Soviet version of community,” is close to reality, even though the same newspapertried to ridicule him by saying that “the chief trouble with our democracy is the people.
Without them it would work perfectly well.”46 Indeed, as far as civil society and its elements are concerned, according to a poll conducted by the Public Opinion foundation among fifteen hundred urban and rural resi-dents in June 2001, only 5 percent of Russian citizens are active in public organizations.
73 percent said they would not like to work in any public organization, versus 15 percent 43See, for example, Diamond, “Civil Society and Democratic Development: Why the Public Matters,” 7.
44As of 1 September 2001, state property in Russia includes 9,855 federally owned state unitary enterprises, 34,868 institutions, and 4,308 share packages. The share packages differ in size. In 84 joint-stock companies the RussianFederation owns 100 percent of the authorized capital, in 605—more than 50 percent, and in 1,719—less than 25percent (“Na prodazhu,” Argumenty i fakty, 26 September 2001).
45Polit.ru, 21 April 2000.
46Grigorii Iavlinskii, “Liberalizm dlia vsekh,” Obshchaia gazeta, 28 June 2001; Dmitrii Furman, “Kogda vozmozhen liberalizm dlia vsekh,” ibid., 13 July 2001.
who said that they would.47 A recent UNICEF report finds that young people are even lessactive in social organizations (or in sport activities) than in the late 1980s.48 The average Russian expresses distrust of seven out of ten key institutions of Russian society, with political parties as the least trusted (7 percent) and the courts and the army asthe most trusted institutions in the country (40 percent and 62 percent, respectively).49Only 14 percent of Russians (every seventh one of us) consider Russia a democratic state,with 54 percent saying that “overall” it is not. 60 percent do not believe that their votes arecapable of changing anything.50 Although as few as 6.9 percent of the fifteen hundredRussians polled by the Russian Public Opinion and Market independent research centerbelieve that a situation in which political leaders make arbitrary decisions as they see fitwould be best for Russia, and although as few as 2.8 percent believe that military rulewould be very good for Russia, only 9.1 percent believe that democracy is “the best form ofrule despite certain problems it poses” (an additional 38.7 percent “to some degree” sharethis view).51 An analytical report prepared at the Institute of Legislation and Comparative Law under the Russian Government indicates that 70 to 80 percent of Russians think that “lawsoverall do not work.” 28.2 percent of civil servants recognize that they have to ignore orviolate federal laws in their work. 70 percent of the population believe that they have toundertake illegal actions in order to guarantee their legitimate rights more often now thanbefore the beginning of legal reforms in the country. 56 percent of the population (and58.9 percent of civil servants) consider the government and other federal bodies of theexecutive branch the most corrupt. Since the end of 1989, people’s trust in the federallegislature has shrunk from 88 percent (for the USSR Supreme Soviet) to 4.3 percent (forthe State Duma). Only 3.7 to 3.9 percent of Russians agree that Yeltsin’s decade was a“necessary stage in the development” of Russian society (4.8 to 5.1 percent of civil 47Interfax, 2 July 2001.
48The report, Young People in Changing Societies, is available at www.unicef-icdc.org/presscentre/presskit/monee7/ 49Rose, “Rethinking Civil Society,” 25–26. Russia is not unique in this respect. Rose finds a “similar level of distrust” in the Czech Republic, Slovakia, Hungary, and Poland (p. 25). A new study also finds that the “distributionof attitudes toward democracy within the Russian population is not so very different from many other countries intransition” (Timothy J. Colton and Michael McFaul, Are Russians Undemocratic? (Washington, 2001), 21). Over-all, the results of Colton and McFaul’s study corroborate the conclusions of a group of Iowa scholars made severalyears ago (based on 600 completed interviews in 1990, 1,400 in 1991, 1,300 in 1992, and 1,750 in 1995) thatRussian legal values are close or similar to those in other former Soviet republics or in the United States: “The Russianmass public is not . hostile to the rule of law. . We discover more support for legal procedure [in Russia] than mighthave been expected. . On the whole Russians show greater support for legality than do Lithuanians. . We findAmerican and Russian publics to have a very similar proportion of those willing to jettison suspects’ rights in the nameof fighting crime” (William M. Reisinger, Arthur H. Miller, and Vicki L. Hesli, “Russians and the Legal System: MassViews and Behaviour in the 1990s,” Journal of Communist Studies and Transition Politics 13 [September 1997]:24, 25, 45). See also William M. Reisinger, Arthur H. Miller, and Vicki L. Hesli, “Political Values in Russia, Ukraineand Lithuania: Sources and Implications for Democracy,” British Journal of Political Science 24 (1994): 183–223;Arthur H. Miller, Vicki L. Hesli, and William M. Reisinger, “Comparing Citizen and Elite Belief Systems in Post-Soviet Russia and Ukraine,” Public Opinion Quarterly 59 (Spring 1995): 1–40; and William M. Reisinger, “LegalOrientations and the Rule of Law in Post-Soviet Russia,” in Constitutional Dialogues in Comparative Perspective,ed. Sally J. Kenney et al. (New York, 1999), 172–92.
50See Nikolai Popov, “Fantazii na temu demokratii,” Novoe vremia, no. 34 (2001).
51Interfax, 19 April 2000.
Society, “Civil Society,” and the Russian State servants; 7 to 8.7 percent of Russian elite).52 95.1 percent of the population (and 94.4percent of civil servants) vote for a “decisive restoration of order in the country.” Although as many as 89 percent of the sixteen hundred Russians polled in April 2000 by the All-Russia Center for Public Opinion Studies “strongly support or more or lesssupport” guarantees of the democratic rights and freedoms of every citizen, an increas-ingly growing percentage of Russians (from 71 percent in February 1998, to 81 percent inApril 2000) believe that order is the “most important issue for the country at present,”“even if it is necessary to break some democratic principles and limit people’s personalfreedoms to establish it.” According to another opinion poll, conducted by Monitoring.ru,68 percent of Russians favor such a restrictive institution as propiska (versus 23 percentwho say that it should be abolished) and believe that citizens of the Russian Federationshould have to register at their place of residence via the propiska system.53 Wars of kompromat between TV channels controlled by rival oligarchs, profiteer- ing,54 overcommercialization, de-intellectualization, and a general degradation of liberalmass media in Russia, have led to unsurprising consequences—the second-oldest profes-sion has nearly lost its function as a means of expressing independent public opinion and,in the words of Oleg Poptsov, a veteran of the glasnost campaign and the president of TVTsentr (under jurisdiction of the Moscow city government), “has now moved closer to theoldest [profession] than ever before.”55 As a result, although there is not much support forintroducing any kind of political censorship, over 60 percent of respondents (across allcategories) in a May 2001 opinion poll are prepared to approve some sort of a preliminarychecking or censorship of press reports and publications to ensure “objectivity of informa-tion and a balanced evaluation of current events.” An even more significant majority ofRussians (three quarters of respondents, regardless of their age or education levels) are infavor of censorship aimed at safeguarding public morals.56 According to a poll conducted by the All-Russian Center for Public Opinion Research in June 2001, about three quarters of Russians (72 percent), including AlexanderSolzhenitsyn, a symbol of resistance to the Communist tyranny of the past, federal Minis-ter of Justice Iurii Chaika, and many other leading figures of Russian society and culture,openly and vigorously support restoration of death penalty for certain crimes, whereasonly 19 percent want it abolished. Responding to the demands of society, on 15 February 52The report was titled, “Attitudes of the Population toward Federal Laws and Agencies of State Authority.” A later opinion poll by the All-Russia Center for Public Opinion Studies in mid-January 2001 indicated similar results, show-ing that 75 percent of Russians believe that, in historical terms, the Yeltsin era did Russia more bad than good (with 15percent who do not think so). See Strana.ru, 1 February 2001.
53The All-Russia Center for Public Opinion Studies conducted its poll on 14–17 April 2000, in 150 polling loca- tions in 83 areas of 33 regions of the country (Polit.ru, 21 April 2000; Interfax, 12 July 2001).
54A recent survey of four hundred journalists across Russia, conducted by the Institute of Sociology of the Russian Academy of Sciences, found that 30 percent of them had inserted hidden advertising into stories “regularly” or “occa-sionally.” Overall, 67 percent of journalists had done it “more than once.” “Journalists . themselves have destroyedtheir image as defenders of liberties,” admits the political editor of the St. Petersburg-based daily Nevskoe vremia(quoted in Galina Stolyarova, “Poll Highlights Media’s Weakness,” St. Petersburg Times, 28 August 2001).
55See Oleg Poptsov’s interview in Aleksandr Gubanov, “Televidenie—eto mekhanizm upravleniia stranoi: Mekhanizm upravleniia stranoi nuzhdaetsia v remonte,” Obshchaia gazeta, 26 July 2001.
56Iurii Levada, “Sotsvopros,” Novaia gazeta, 30 July 2001.
2002 the State Duma resolved 266–83 to urge President Putin to reconsider the morato-rium on the death penalty.
Another survey held by the same research center was dedicated to the 120th anniver- sary of Iosif Stalin’s birth and was even more indicative: 44 percent believe that the Stalinera brought good and bad in equal portions to Russia; 19 percent think that there was moregood than bad; and 3 percent more consider that era “absolutely good.” This adds up to 66percent.57 Iavlinskii is wrong, however, to emphasize the “soviet” when he warns of the creation of a “Soviet version of community,” for what was described above as the current interpre-tation of civil society in Russia is closer in its essence to a traditional Russian, rather thanthe Soviet version of a community.
It is true that at the turn of the twenty-first century, Russia (in many respects) lacks a developed civil society in its Western sense of the phrase. The term itself for us in Russiahas more theoretical than practical meaning. A question that still needs to be answered bysocial scientists, however, is whether the civil society concept is universal and equallyapplicable to various countries and civilizations. As Harold J. Berman has observed, con-temporary legal systems are only surface expressions of deeper, broader forces of culturalevolution: “Law cannot be neatly classified in terms of social-economic forces. A legalsystem is built up slowly over the centuries, and it is in many respects remarkably imper-vious to social upheavals. This is as true of Soviet [now Russian] law, which is built on thefoundations of the Russian past, as it is of American law, with its roots in English andWestern European history.”58 Naturally, that observation concerns the development of civil society (or community) in Russia. It was already mentioned that civil society can hardly be instituted by a discretelegal act. Luckily, Russia passed through the ordeal of legislative euphoria and normativeidealism during the Gorbachev era.59 Overall, it has overcome the tendency to view thelaw as a panacea for social problems, to make the law absolute without recognizing thelimits of any legal action. Legislation, as a rule, reflects various prelegal norms and values(as well as prejudices) that are accepted by large strata of a society at a given time. Lawscan work effectively when they embody sociocultural principles that are accepted by themajority of the people. If a new “progressive” or “reactionary” piece of legislation (usuallyin a form of a by-law or an executive legal instrument) is shoved down throats of themajority of the population, or if people do not accept or understand it, in all likelihood itwill become a dead letter. In the worst-case scenario, the law will not just be ignored andtrivialized by people, but will prove detrimental to the lawmakers’ goals.
The recent abolition of the Clemency Commission (for many years headed by writer Anatolii Pristavkin) raised a new wave of criticism, especially in Western press, of the 57Interfax, 28 June 2001; Trud, 6 January 2000.
58Harold J. Berman, Justice in the USSR: An Interpretation of Soviet Law, 2d ed. (Cambridge, MA, 1963), 5; idem, Justice in Russia: An Interpretation of Soviet Law (Cambridge, MA, 1950), 3.
59Legislative euphoria had some positive effects at the early stage of legal reforms in the USSR. For example, from June 1987 to just the autumn of 1988, approximately 1,200 federal and 7,500 republican decrees that hindered theSoviet transition to the rule of law were repealed. In the same period, more than 33,000 federal and 80,000 republicanministerial and departmental rules and regulations concerning economic and social relations in the country wereabolished.
Society, “Civil Society,” and the Russian State Russian government’s ability to strengthen civil society in Russia.60 The Pristavkin com-mission had been portrayed exclusively as “one of the few structures of a civil society,” andas a “humanizing tool” in Russia’s “failing,” “notoriously corrupt, inefficient, and highlydependent” judicial and law enforcement system. Members of the commission were praisedas “liberal writers and scholars who worked day and night, so as to save as many victims offaulty trials as possible.” Pristavkin himself modestly called his commission “an island ofmercy in a sea of cruelty.”61 Although right to call the Clemency Commission a “structure of a civil society” in Russia, these authors otherwise level criticism which does not hold water. Back in 1992,the idea was to staff the commission with seventeen representatives from Russia’s liberalintelligentsia (writers, specialists in Russian literature, former dissidents, a reformist cler-gyman, and so on). As “holders” of some progressive humanitarian ideas, they wouldhave an enlightning effect on society and the state. Unfortunately, the experiment failed,and not because of the state. Instead of cooperating with the state and its structures, thecommission infringed on its prerogatives, and it was only a matter of time that such in-fringement would backfire. The commission was formed as an advisory body of the fed-eral presidential administration and technically had no formal power or authority. It couldonly recommend something to the president, and while the president could follow its ad-vice, he was not obliged to do so. When agreeing—year after year—with all (or nearly all)of the Clemency Commission’s recommendations, Yeltsin set a precedent and madePristavkin and his comrades believe that they were above the state. The advisory commis-sion, however, could not and should not substitute court decisions or the will of the execu-tive, just as no other element of a civil society can substitute for the state.
Sentiments aside, according to official data (compiled in the beginning of 2001 by the federal Ministry of Justice for the presidential administration), the number of recommendedpardons grew from 2,726 in 1992 (when the Clemency Commission was formed) to 4,988in 1995, and 7,418 in 1999.62 In 2000 the Clemency Commission considered about 13,300 60In legal terms, clemency (pomilovanie) (exercised by the president according to Article 89 of the Russian Federa- tion Constitution) should not be confused with amnesty (amnistiia), which is a prerogative of the State Duma (Art.
103). For details see I. L. Marogulova, Amnistiia i pomilovanie v rossiiskom zakonodatel'stve (Moscow, 1998). Thewhole controversy caused by the reorganization of the Clemency Commission is a good illustration of how the conceptof civil society is being misunderstood and misused, not only by the Russian federal government (which is natural) butalso by another Russian elite—the liberal intelligentsia—as well as by Western experts and the Western mass media,who “have always seen Russian politics through the eyes of the radical Moscow intellectuals” (Jerry F. Hough, EvelynDavidheiser, and Susan G. Lehmann, The 1996 Russian Presidential Election [Washington, 1996], 14). See alsoGennadii Ponomarev, “Pomilovanie ne dolzhno nosit' massovogo kharaktera,” Obshchaia gazeta, 28 March 2002.
61See, for instance, Kathy Lally, “Pardons Turn Rare in Putin’s Russia,” Baltimore Sun, 14 June 2001; Masha Lipman, “How Putin Pardons,” Washington Post, 17 July 2001; and Sophie Lambroschini, “Russia: Pardon SystemPlays Mercy Role Amid A Cruel Society,” RFE/RL, 23 February 2001.
62Sergei Pykhtin, “Privatizatory miloserdiia?” Rossiiskaia Federatsiia segodnia, no. 18 (2001): 8. Commentary to the Russian Constitution (prepared five years ago by the Center for Constitutional Studies of the Moscow PublicScience Foundation, with the participation of a justice of the federal Constitutional Court [Gadis Gadzhiev] and agroup of distinguished foreign scholars [Peter Solomon, Stephen Holmes, Andras Saio, Michel Lesage, and so on]),gives more specifically a number of commutations of death penalty on the recommendation of the Pristavkin commis-sion in 1992–94. In 1992 the commission considered 56 death penalties and recommended that the president com-mute 55 of them. Two years later the commission considered 137 death penalties and recommended 124 commuta-tions. (Konstitutsiia Rossiiskoi Federatsii: Problemnyi kommentarii [Moscow, 1997], 141). As we see, the numbersof commutations correlate with the commission’s recommendations about pardons in general.
petitions and recommended that the president pardon 12,834 petitioners (or more than 96percent!) Like his predecessor, Putin approved all of the commission’s recommenda-tions.63 Overall, Yeltsin pardoned more than fifty thousand criminals, and Putin—aboutten thousand (by March of 2001).64 What is much worse and troublesome, however, is not even the skyrocketing numbers of the pardoned, but rather their composition. The percentage of petty criminals pardonedin 2000 upon recommendations of the commission was less than a quarter, whereas 76percent of the pardoned had been sentenced for murders (2,689), “assaults leading to asevere injury to the health of a victim” (2,188), banditry (1,848), robbery (709), kidnap-ping (18), and the like. One of the latest sets of seventeen draft “pardon decrees” sent bythe Pristavkin commission to Putin (with a recommendation to sign them) included 2,565names. 2,449 of them (95 percent) were criminals convicted for “serious and very serious”(tiazhkie i osobo tiazhkie) crimes.65 Recidivists comprised about 60 percent of the list:1,070 of them had been convicted twice; 318—three times; 81—four times; and 37—fiveor more times. Prison and penal colony administrations objected to the commission’srecommendations at least 308 times, but the criminals were pardoned anyway.66 The existence of this disturbing trend was confirmed by N. V. Eliseeva, a Russian lawyer who independently analyzed material from the presidential administration’s Par-dons Department. Eliseeva concluded that criminals who had been convicted for “seriousand very serious” crimes received a disproportionately high percentage of pardons. In1996–2000 they comprised between 40 and 58.6 percent of those pardoned; of the entireincarcerated population, meanwhile, only 23.4 to 23.9 percent had been convicted for“serious and very serious” crimes—half the relative size of their group’s number ofpardons.67 For comparison, although the legal institution of clemency is known in most coun- tries of the world, it is applied extremely rarely, in exceptional cases or circumstances.
There are about twenty-seven thousand names, for example, on the comprehensive list ofacts of clemency for U.S. federal crimes—these acts of clemency might include a reprieve,remission of fine, commutation, or pardon)—and this list comprises the 206 years fromGeorge Washington to Bill Clinton (but it excludes the scandalous pardons Clinton granted 63Every Tuesday (the only day when the Clemency Commission held it meetings), members of the seventeen- member commission considered between 200 and 700 cases. The journal of the Russian Federal Assembly calculatedthat members of the Pristavkin commission spent between 17.5 seconds and 2 minutes to consider each case (SergeiPykhtin, “Privatizatory miloserdiia?” 8).
64N. Demidenko, “Konstitutsionno-pravovoe regulirovanie voprosov pomilovaniia v Rossiiskoi Federatsii,” Pravo i zhizn', no. 38 (2001): 191.
65The categorization of crimes in the Russian Criminal Code is more complex than the felony-misdemeanor divi- sion in the United States. The four categories of crimes and their maximum punishments are: minor crime (up to 2years in prison); moderately serious crime (up to 5 years in prison); serious crime (up to 10 years in prison); veryserious crime (over 10 years in prison, life imprisonment, or death, although the death penalty has not been carried outsince Russia was admitted to the Council of Europe in February 1996).
66The Russian press has written about defense attorneys who proudly advertise their service, saying that they have access to the Clemency Commission, but that the “fee for that service is high” (dorogo stoit). Reportedly, $5,000 wasthe going rate for commutation of a one-year prison sentence. See Marina Gridneva, “$5000 za kazhdyi god svobody:Pochemu prezident perestal proshchat' ubiits i banditov,” Moskovskii komsomolets, 26 December 2001.
67N. V. Eliseeva and A. S. Mikhlin, Pomilovanie v Rossiiskoi Federatsii (Moscow, 2001), 50. See also A. S.
Mikhlin, V. I. Seliverstov, and L. V. Iakovleva, “Pomilovanie v Rossii,” Zakon, 2002, no. 3:137.
Society, “Civil Society,” and the Russian State to 140 crooks and criminals on his last day in office).68 In the last eight years only 0.3percent of convicted criminals have been pardoned in the U.S. (on the federal level). In2001, President George W. Bush received almost nine hundred requests, but did not grantclemency to anybody. In Germany, 111 people were pardoned in 1994–99. Nobody hasbeen pardoned in Japan in the last thirty years. The president of France receives 25,000-35,000 pardon petitions a year, but grants no more than 1.5–2 percent of them.69 Although virtually all participants in the Civic Forum’s July 2001 press conference spokeabout the need for “constructive cooperation” between the institutions of civil society andthe state, full-fledged cooperation between them is still in the realm of wishful thinking. Ifdistrust was indeed a “pervasive legacy of communist rule,” as Richard Rose claims, it iseven more so in post-Communist, “democratic” Russia.70 And it is not the peculiarities ofthe Russian statist, conservative, and traditionalist understanding of civil society that posesthe main problem to the development of civil society, but rather the current condition ofRussian society itself.
Vladimir Putin inherited a crushed, looted, and humiliated country struggling to sur- vive the “liquidation regime” of the “reformers.” In just ten years the country has lostabout 44 percent of its GDP. Russia’s population has been shrinking by up to half apercent a year, and its increase in mortality rates (60 percent since 1990) has been “un-precedented in any country during peacetime since the Middle Ages.”71 After ten years ofanti-human “reforms” Russia ranks 134th among all states in terms of male life expect-ancy, and 100th in terms of female life expectancy (by 1997, the death rate among Russianmales had equaled that of war-ravaged Liberia). Men in “democratic” Russia have asmaller chance of surviving to age 60 than under the tsar a century ago. The country has 68Ronald Reagan, for instance, pardoned 406 people in 8 years. 70 people were pardoned, only one commutation granted, and 1,554 executive clemency applications denied from 1989 through 1993. See the remarkable studies ofclemency in the United States by P. S. Ruckman, Jr., “Executive Clemency in the United States: Origins, Development,and Analysis (1900–1993),” Presidential Studies Quarterly 27 (Spring 1997); and “Keys to Clemency Reform:Knowledge, Transparency,” Jurist (7 March 2001), both available at jurist.law.pitt.edu/pardonop5.htm. A completelist of executive clemency applications from 1953 through 1999 is available at www.rvc.cc.il.us/faclink/pruckman/pardoncharts/jopdata.htm.
69To our knowledge, the memo of the federal Ministry of Justice which led to the reorganization of the Pristavkin commission was never published in its entirety in the open press. However, it was quoted several times in the Russianmass media. See, for instance, Marina Gridneva, “Nasil'nik mil ne budet,” Moskovskii komsomolets, 9 July 2001;and L. Kazik, “Miluiut tut vsiakikh,” Kommersant - Vlast', no. 28 (2001): 23–25. It is amazing that criticism ofPutin’s decision to improve the effectiveness of the Clemency Commission’s work comes mainly from the UnitedStates, a country that has the largest prison population in the world (approximately 2 million in 2001—more thantwice the size of Russia’s), executes somebody every five days on average, and, according to numerous reports ofAmnesty International and other human rights organizations, continues “to violate international standards by using thedeath penalty against the mentally impaired, individuals who were under 18 at the time of the crime, and defendantswho received inadequate legal representation.” Between 1977 and 1999 state authorities in the United States com-muted only forty death sentences on “humanitarian grounds.” See U.S.A: Killing Without Mercy: Clemency Proce-dures in Texas (Amnesty International, 1 June 1999), available at www.web.amnesty.org/ai.nsf/index/AMR510851999.
70Rose, “Rethinking Civil Society,” 18. According to a recent poll conducted by ROMIR-Gallup International, 45.3 percent of Russians do not trust their government, compared to 45.1 percent who do (Interfax, 30 August 2001).
71The conclusion belongs to Murray Feshbach, a former branch chief at the U.S. Bureau of the Census and research professor at Georgetown University, and now a Senior Scholar at the Wilson Center (Washington Post, 12 July 1995).
more homeless children today (between one and two million) than after the BolshevikRevolution or World War II.
An unprecedented social catastrophe in Russia, which the UN Development Program calls “a human crisis of monumental proportions” and which has been largely ignored bythe Western community, makes any discussion of “civil society” in Russia today even moreartificial and irrelevant than ten years ago.72 The concept of civil society implies a (rela-tively) high level of well-being. Destitute people are unable to form a civil society. At theturn of the twenty-first century, the Russian nation must first concentrate on stopping thedepopulation and degradation of Russia and on overcoming the disastrous consequencesof Yeltsin’s regime, rather than on involving the country in another round of radical eco-nomic “reforms” and futile social engineering. Otherwise, there will be no Russia orRussian society, whether civil or uncivil.
72UNDP Press Release, “Men Hardest Hit by Hurried Transition to Free Markets in Ex-Soviet Countries,” in Tran- sition 1999: Human Development Report for Central and Eastern Europe and the CIS, available at www.undp.org/rbec/pubs/hdr99/pr.htm.

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